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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, December 31, 2018

New Legislation Requires Township Clerks to "Attest" to "Payouts"

Governor Rauner recently signed Public Act 100-0983 into law. This law amends the Township Code, the Highway Code and the Public Graveyards Act by adding cryptic language requiring township clerks to “attest” to certain “payouts” of funds. This law adds a new section 7-27 to the Township Code specifying that, “If a township supervisor issues a payout of funds from the township treasury, the township clerk shall attest to such payment.”  The Highway Code is amended by adding a new section 6-114.5 which states, “If a road district treasurer issues a payout from the road district’s treasury or the township treasury, the road district clerk shall attest to all moneys paid out.”  The Public Graveyards Act was amended to also include a similar provision.

Unfortunately, the legislation does not define the manner in which the clerk is to “attest” to the payouts – does that mean that the clerk is attesting that the funds were expended?  Or that they were expended for the purposes specified?  Or that there are sufficient funds available to make the payout?  Or is the clerk attesting that the township board or the Supervisor approved the expenditure of the funds?  Nor does the legislation define what a “payout” is.  Does “payout” cover credit card payments, auto payment of utility bills and electronic fund transfers?  What about townships which have passed resolutions authorizing the payment of routine utility bills?  There is no record of legislative history or substantive debate available to help determine the General Assembly’s intent behind this new law.

In the absence of clarity, townships may choose to satisfy this law in different ways based on how they interpret it.  The Township Officials of Illinois association is recommending that township clerks attest “to the signature of the supervisor on all checks written.”  Certainly, townships may do that if they would like.  However, the law does not state anything about attesting to a signature – it specifies that the attestation is to the “payout of funds,” a “payment” or “all moneys paid out.”  It does not state anything about clerks endorsing a check or a signature, nor does it require that the attestation of the payout must occur prior to the payout.  Further, even if a township clerk certifies a supervisor’s signature on a check, it is not clear whether that act would satisfy the legislation’s requirement to attest to a “payout of funds” or to “all moneys paid out.”

While the legislation was apparently intended to promote transparency – which is a good thing - and to prevent situations where township supervisors were issuing checks without township board approval, (which was already illegal), it will be challenging for townships to comply with this legislation without further clarification about the scope of a clerk’s attestation to a payout.  If the legislation was intending to require township clerks to witness the township supervisor’s signature and endorse every check, it could have said that – but that is not what this says.  We have heard from some townships whose banks have indicated that they will not accept and process checks bearing a second signature of someone who is not a signatory to a financial account.  In addition, banks that have reviewed this ambiguous new law are not interpreting it to require them to have to accept an additional signature.

Perhaps a simpler option for township clerks would be to maintain a copy of all expenditures or “payouts,” develop a separate sheet attesting that the payouts at issue were authorized by the township board, expended for the purposes specified,  provided for in the budget and directed to be paid out by the Township Supervisor.  That action would seem broad enough to comply with the requirements of this legislation, and it would perhaps be easier for clerks to accomplish. 

This law becomes effective on January 1, 2019.

Post Authored by Keri-Lyn Krafthefer, Ancel Glink

Thursday, December 27, 2018

Court Finds City's Sports Ticket Sale Ban Near Stadiums Constitutional

In a second case involving a challenge to a City of Chicago ordinance, the Illinois appellate court again ruled in favor of the City. City of Chicago v. Haywood.

The City of Chicago has an ordinance that states as follows:
It shall be unlawful for any person, while located on the public way within 2,000 feet of a stadium or playing field, to sell, offer, or expose for sale, or solicit any other person to purchase tickets for any amusement produced or presented in that stadium or playing field. (Chicago Municipal Code §10-8-505(a))
Haywood was arrested twice for selling sports tickets within 2,000 feet of Wrigley Field. He countered by arguing that the City's ordinance was unconstitutional on several grounds, including that it violated his First Amendment rights and was overbroad. The circuit court agreed, and found the ordinance unconstitutional.

The appellate court reversed. First, the court held that selling sports tickets does not implicate any First Amendment rights. Second, because the ordinance did not implicate any fundamental rights, it only needed to satisfy "rational basis." In this case, the City argued that the ordinance was intended to ensure the safe and unobstructed flow of pedestrian and vehicular traffic near sports stadiums. The appellate court accepted that, and reversed the trial court's ruling finding the ordinance was constitutional.

Wednesday, December 26, 2018

Court Upholds City's Tax on Tobacco Products

In 2016, the City of Chicago adopted an ordinance imposing a flat tax on non-cigarette tobacco products, including smoking tobacco, smokeless tobacco, pipe tobacco, and cigars. Shortly after enactment, Iwan Ries and various tobacco associations filed a lawsuit against the City challenging the legality of the ordinance, claiming the ordinance was unconstitutional because it was preempted by section 8-11-6a(2) of the Illinois Municipal Code which provides in part as follows:
Notwithstanding the foregoing, this Section does not preempt any home rule imposed tax such as the following...(2) a tax based on the number of units of cigarettes or tobacco products (provided, however, that a home rule municipality that has not imposed a tax based on the number of cigarettes or tobacco products before July 1, 1993, shall not impose such a tax after that date.
The circuit court agreed with the plaintiffs and struck down the City's ordinance, finding that it was preempted by state law because the City had not enacted a tax on tobacco products prior to 1993. The City appealed, and the appellate court ruled in the City's favor, reversing the lower court's decision. Iwan Ries & Co. et al. v. City of Chicago.

Plaintiffs argued that because the City had not enacted a tax on tobacco products prior to 1993, it was preempted from enacting one in 2016. The City countered by arguing that because it had a cigarette tax in place in 1993, it was not preempted from enacting a tobacco product tax. The appellate court agreed with the City's interpretation of the statute based on the statute's use of the word "or". Specifically, the appellate court held that because the City had enacted a tax on cigarettes prior to July 1, 1993, it was not preempted from enacting a tax on either cigarettes or tobacco products after that date. As a result, the appellate court reversed the circuit court's ruling striking down the City's tax.

Thursday, December 20, 2018

Amendment to Local Government Professional Services Selection Act

Local governments should be aware of a new law that takes effect on January 1, 2019 relating to professional services contracts. The Local Government Professional Services Selection Act requires local governments to follow certain procedures for retaining professionals to provide architectural, engineering, and land surveying services. The Act requires the local government to publish notice in the newspaper before selecting a professional, and the Act contains certain evaluation "criteria" for selection, including qualifications, past record and experience, availability to meet time requirements, location, workload and other qualifications. The Act prohibits local governments from seeking estimates of costs as part of the proposal process.  The Act exempts from this process services provided by firms with "a satisfactory relationship for services." 

The Act currently authorizes a local government to waive this process if the services for the project is expected to cost less than $25,000 - P.A. 10-0968 amends that amount to $40,000, effective January 1, 2019.

Monday, December 17, 2018

Zoning Challenge Moves Forward After Appeal

In a lengthy opinion involving a dispute spanning more than a dozen years, an Appellate Court recently issued an opinion in a case challenging amendments to a municipal zoning ordinance regarding commercial horse boarding. Drury v. Village of Barrington Hills.

In 2006, Barrington Hills amended its zoning ordinance to allow residential horse boarding as a home occupation, subject to a variety of restrictions, including hours of operation. 2 years later, the Village cited a resident for violating the ordinance for operating a large-scale commercial horse boarding facility which did not comply with the "home occupation" restrictions. While the resident (LeCompte) defended the citation in court, neighbors (including Drury) filed their own lawsuit to enforce the ordinance against LeCompte's use.

After LeCompte lost his case against the Village, he asked the Village Board to amend its ordinance to allow large-scale horse boarding operations. The Board did adopt an ordinance that permitted LeCompte's use and also made the ordinance retroactive to 2006. The neighbors filed another lawsuit, this time challenging the zoning amendment on "substantive due process" grounds, alleging that it was unlrelated to the health, safety, and welfare because it was passed solely for the benefit of LeCompte.

After the spring 2015 elections, the composition of the Village Board changed. Shortly thereafter, the Village entered into an agreed settlement order with the neighbors in which the Village agreed that the zoning amendment was "void ab initio" meaning the ordinance was void when it was adopted. The circuit court refused to enter the agreed settlement order between the Village and neighbors. The court also dismissed the neighbors lawsuit challenging the zoning amendment. 

On appeal, the Appellate Court agreed that the settlement order between the Village and neighbors was improper, specifically because it did not include all of the parties, specifically LeCompte who had intervened in the case filed by the neighbors challenging the zoning amendment that allowed commercial horse boarding. 

However, the Appellate Court did not agree with the circuit court's dismissal of the underlying lawsuit by the neighbors for a number of reasons. First, the Appellate Court determined that the neighbors did sufficiently plead that the zoning amendment was passed for the exclusive benefit of LeCompte based on the retroactivity language that the circuit court deemed a "legislative pardon" of LeCompte's fines for violating the previous zoning ordinance. Second, the Appellate Court noted that the Village Board repealed the ordinance less than a year after its adoption and in doing so, expressly disclaimed any rational basis for that ordinance. 

Based on the Appellate Court's ruling, the case will go back to the circuit court for further proceedings on the neighbor's challenge to the zoning amendment.

Thursday, December 13, 2018

Another Election Special Quorum Forum Podcast Released

Ancel Glink's Quorum Forum podcast has just released Episode 16: Election Special! Governmental Issues and Electoral Boards. In this episode, we focus on the local election process. A summary of the podcast is below:

Election season isn’t just for candidates! Local election officials and electoral boards have many responsibilities to make elections happen. Meanwhile, local governments are asked to enforce political sign regulations and electioneering laws. Sometimes local governments get involved in elections themselves with their own referenda and public questions. With so many election-related issues, Ancel Glink’s Keri-Lyn Krafthefer joins us for another election special addressing governmental issues and electoral boards! 

What issues does your local government face during election season? Email us at podcast@ancelglink.com!

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Wednesday, December 12, 2018

Court Provides Guidance on "Unduly Burdensome" FOIA Requests

An Illinois Appellate Court recently issued a ruling in a FOIA challenge that provides public bodies with helpful guidance on what they need to show when responding to a requester that a particular request is "unduly burdensome." Sargent Shriver National Center on Poverty Law v. Board of Education of City of Chicago.

Shriver had submitted three FOIA requests asking for records pertaining to, among other things, complaints filed with Chicago schools relating to police officer or security guard conduct and employee misconduct reports.  In response to all three requests, the Board sent a notice of extension of time, and then notices that the requests were unduly burdensome under section 3(g) of FOIA and asking the requester to narrow the categorical request. When Shriver did not narrow the requests, the Board denied them as unduly burdensome. Shriver then sued, alleging that the Board willfully and intentionally failed to comply with FOIA. The circuit court dismissed the case against the Board, finding that Shriver's allegations were insufficient to show a violation of FOIA. 

On appeal, the appellate court agreed that the dismissal of Shriver's case against the Board was proper. First, the appellate court determined that the Board properly extended the time to respond to the request by sending notice to Shriver.  Second, the appellate court held that the Board properly denied the request as unduly burdensome after sending notice to Shriver asking it to narrow its categorical request. The appellate court noted that the Board had included a detailed explanation as to why complying with Shriver's request would be unduly burdensome, including the number of files that would have to be compiled, reviewed, and redacted and the Board's estimate of the manpower it would take to do that work. Interestingly, the second FOIA request involved 600 employee misconduct reports, and the appellate court accepted the Board's argument that it would be unduly burdensome to provide these records because it would take hundreds of hours to review and redact the reports.

This is an interesting and helpful decision for public bodies in understanding how courts will analyze requests that are denied as "unduly burdensome." One of the keys to this ruling seemed to be the Board's detailed description in the denial letter as to why compliance would be unduly burdensome.

Tuesday, December 11, 2018

New Act Extends PEDA Benefits to Paramedics

The Illinois General Assembly recently enacted P.A. 100-1143 amending the Public Employee Disability Act (PEDA) to expand disability benefits. Currently, PEDA requires a state or local government employer to continue to pay a police officer or firefighter, who is injured in the line of duty and unable to perform his or her duties, the employee's salary for a one year period without requiring the employee to use sick leave or other leave time. This new law extends PEDA benefits to a "full-time paramedic or a firefighter who performs paramedic duties." The Act is effective January 1, 2019.

The bill had been vetoed by Illinois Governor Rauner but the Illinois Senate and House voted to override the veto.

Monday, December 10, 2018

"Holiday Spirits" Quorum Forum Podcast is Live!

One of our most entertaining and quite timely Quorum Forum podcast episodes has just been released.  In Episode 15, "Holiday Spirits," you will hear Ancel Glink attorneys discuss new liquor licensing laws and regulations and much more.

You can access Episode 15 of Quorum Forum podcast here.

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer here

Wednesday, December 5, 2018

Don't Forget to Approve Your Annual Schedule of Regular Meetings

We wanted to send out a reminder that the Illinois Open Meetings Act requires Illinois public bodies to adopt an annual schedule of their regular meetings. So, before the end of the year, Illinois governments should schedule an item on an upcoming meeting agenda for the public body to approve the schedule of meetings for 2019. The annual schedule must include the times and places of all regular meetings. 5 ILCS 120/2.03.

This requirement applies not only to the corporate authorities (city council, village board, park board, school board, library board, township board, etc) but also to subsidiary bodies such as the plan commission, zoning board of appeals, etc. to the extent these subsidiary bodies have "regular" meetings as opposed to scheduling special meetings when needed.

Tuesday, December 4, 2018

Governor's Removal of IPRB Member Not Subject to Judicial Review

After Illinois Governor Rauner terminated the appointment of a member of the Illinois Prisoner Review Board, the terminated member sued, claiming he was wrongfully terminated. The circuit court agreed, but that ruling was reversed by the Illinois Appellate Court, which held that the Governor's decision to remove the IPRB member was not subject to judicial review. The case was eventually appealed to the Illinois Supreme Court in Gregg v. Rauner.

In 2012, Gregg, the mayor of Harrisburg, was appointed by former Governor Quinn to serve on the IPRB board. At the time of his appointment, Gregg was required to file  statement of economic interests. In his statement, he wrote "none" in the space requiring identification of any gift valued over $500. 

In 2013, the former treasurer of Harrisburg notified the state that Gregg had failed to include a medical lift chair that he had received as a gift. No action was taken at that time. 

In 2014, Gregg filed for bankruptcy, indicating on his petition monthly income of $4,027 from operating a business. After Governor Rauner took office, a newspaper reporter contacted the Governor's legal counsel asking whether Gregg's reported income violated state law that prohibits IPRB members from engaging in any other business, employment, or vocation. 

In 2015, Governor Rauner's General Counsel informed Gregg that the Governor's Office had received allegations that Gregg had submitted a false bankruptcy filing and had failed to report gifts on his statement of economic interests. Gregg responded that the income reported on the bankruptcy filing was his wife's and that the statement he filed related to 2011, and he was not asked to file an amended statement in 2012.  Shortly thereafter, the Governor terminated Gregg's appointment,, citing malfeasance, incompetence, and neglect of duty.

The circuit court ruled in favor of Gregg, holding that the reasons given by Rauner were not sufficient to constitute "cause" under state law. The appellate court reversed, finding that the court had no jurisdiction over the removal of members of the IPRB.

The Illinois Supreme Court agreed, finding that the separation of powers doctrine prohibited a court from reviewing the Governor's removal of a member of the IPRB because that review would interfere "with the Governor's responsibility for the faithful execution of the laws."  The Court acknowledged that there are other boards and commissions that are constitutionally created and politically independent where removal could be judicially reviewed; however, the IPRB was not such a board. As a result, the Court concluded that the Governor's decision to remove Gregg from the IPRB board was not subject to judicial review. 

Monday, December 3, 2018

Election Special Podcast Just Released on Quorum Forum

Ancel Glink's podcast, Quorum Forum has released a new Episode 14 on elections. Information about this very timely episode is below:

Local election season is underway, and you can’t win an election if you’re not on the ballot. That’s why Ancel Glink partner Keri-Lyn Krafthefer joins us to navigate you through the ballot access process, talking about nomination petitions, the statement of candidacy, the statement of economic interest, and more! 

How are you preparing for local elections in 2019? Tell us about it, podcast@ancelglink.com!

You can access this new episode on the Quorum Forum website here.

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer here

Thursday, November 29, 2018

No First Amendment Violation in County's Termination of Employee

A federal appeals court recently ruled in favor of a county being sued by a former employee who claimed the County violated her First Amendment rights by terminating her because of her political affiliation.

The County hired Bogart as its Financial Resources Director in 2007.  Bogart is a Democrat. In 2012, several Republican candidates won election to the County Board, giving the Republicans majority control of the County Board. The Board selected a Republican as the Chairman, who served from 2012 to 2014. At the end of 2014, the Chairman was replaced by another Republican who terminated Bogart within a month of taking that position. Bogart filed suit, claiming the County violated her civil rights by engaging in political retaliation and discrimination when it terminated her.

The district court ruled in favor of the County, finding that because Bogart's position entailed policy-making authority and discretion, the position fell within an exception to the general First Amendment ban on political patronage dismissals. 

Bogart appealed to the Seventh Circuit, which upheld the district court's ruling in favor of the County. The Court acknowledged that the U.S. Supreme Court has held that public employers cannot condition employment on an employee's political affiliation under the First Amendment's right of political association. However, the general rule has an exception known as the "Elrod-Branti" exception that applies when a public employer can show that party affiliation is an appropriate requirement for the effective performance of the public office. Factors such as policy-making authority, the provision of political advice, or access to confidential and politically sensitive thoughts are considered when determining whether a particular position is subject to the exception.

In this case, the Seventh Circuit determined that Bogart's position as the County's Financial Resources Director involved substantial policy-making authority, including developing budgeting and other financial planning documents for the County, making it "effectively a cabinet-level position" in the County, according to the Court. As a result, the County could terminate Bogart without violating her First Amendment rights. Bogart v. Vermillion County (7th Cir. Nov. 26, 2018)

Wednesday, November 28, 2018

Township Officials Not Entitled to Anti-SLAPP Act Immunity

Three City officials sued a Township Assessor and Supervisor, and the Township itself, claiming the defendants had defamed them and cast them in a "false light" when the Township Supervisor sent a letter to newspapers, local officials, and others alleging that the City officials engaged in criminal acts in connection with property exemptions. One of the letters from the Supervisor stated that he had "discovered how several current and former public servants used their inside status to scratch their own backs and lower their own property taxes - causing homeowners of Burbank to pay more property taxes."

The defendants argued  they were immune from liability under the state Citizen Participation Act (an anti-SLAPP statute - Strategic Lawsuits Against Public Participation), and asked the court to grant summary judgment to defendants. Specifically, defendants argued that the Act protected the Supervisor's actions because the letter was an act of participation in government. The circuit court denied the motion, finding that there was still a question of fact whether the statements in the letter were true or false and that defendants failed to show the lawsuit was meritless.

Defendants appealed, and the Illinois Appellate Court upheld the circuit court ruling against the defendants in Kainrath v. Gride, 2018 IL App (1st) 112270. Although, the appellate court agreed that the Supervisor's act of sending the letter was a protected act of citizen participation that would qualify defendants for protection under the Act, because defendants failed to show that plaintiffs' defamation and false light claims lacked merit they were not entitled to protection under the state's anti-SLAPP statute.

Monday, November 19, 2018

Judge's "Friendship" With Attorney on Social Media Does Not Require Disqualification

We have written in the past about how court's have interpreted social media "friendship," particularly in the legal or ethical sense when there is a question about bias or impartiality. A Florida Supreme Court recently issued a ruling weighing in on this issue involving an attorney's Facebook "friendship" with a judge who was assigned to one of the attorney's cases. 

A law firm had filed a motion to disqualify the judge in a case because the judge was Facebook "friends" with opposing counsel. The judge denied the motion, ruling that the mere fact that a judge is friends with an attorney appearing before the judge does not, alone, disqualify the judge from a case. That ruling was appealed and made its way to the Florida Supreme Court which upheld the judge's ruling. The Court stated that the fact that a judge and an attorney are Facebook friends, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the attorney. The Court emphasized that a social media "friend" may or may not be a "friend" in the traditional sense, noting that social media users may have thousands of social media "friends" that are more casual and less permanent in nature than traditional friendships. The Court cited numerous bar association and ethics opinions that also ruled that a social media friendship, without more, does not establish bias or influence that would require disqualification.

You can read the opinion here.

Friday, November 16, 2018

PAC Says Records Involving Juvenile Witnesses and Victims Not Exempt From FOIA

The PAC just issued a binding opinion that sheds some light on how the Attorney General interprets recent changes to the Juvenile Court Act and FOIA.  PAC Op. 18-016.

A law firm that routinely files FOIA requests with municipal police departments for traffic accident reports submitted a request to the Rock Island PD for a particular accident report. The PD denied the request, citing section 7.5(bb) of FOIA and section 1-7(A) of the Juvenile Court Act. The PD argued that the accident report was exempt because the accident involved six minors who were listed as victims and witnesses in the report. The PD pointed to a recent amendment to the Juvenile Court Act that provides that "All juvenile records which have not been expunged are sealed and may never be disclosed to the general public or otherwise made widely available." 

The law firm appealed the denial to the PAC, which found the PD in violation of FOIA for denying the request for the accident report. The PAC first reviewed the Juvenile Court Act and the recent amendment and determined that "juvenile records" was not defined. However, the PAC noted that the legislative history of the new language suggested that the legislature intended to protect "juvenile records" that relate to a minor who has been "investigated, arrested or taken into custody" and not records where the minor is a witness or a victim. 

In short, the PAC found that the Juvenile Court Act protects law enforcement records where a minor is being investigated, arrested, or taken into custody, but does not protect records where the minor is a victim or witness.  

Although not addressed in the opinion, the PD might have redacted the names and identifying information about the minors and cited 7(1)(c) of FOIA which exempts records where the public body can demonstrate that disclosure would be an unwarranted invasion of personal privacy that outweighs any public interest in their release. 

Thursday, November 15, 2018

First Amendment Lawsuit Against Cook County Circuit Court Not Appropriate in Federal Court

The Seventh Circuit Court of Appeals reversed a district court's injunction against the Cook County Circuit Court Clerk that ordered the Clerk to provide immediate access to all court filings to a news service. Courthouse News Service v. Brown (7th Cir. Nov. 13, 2018).

Courthouse News Service had filed the federal lawsuit against the Cook County Circuit Court claiming that the Court violated its First Amendment rights when it failed to provide immediate access to newly filed complaints. The district court ruled in its favor and issued an injunction ordering the Circuit Court Clerk to implement a system that would provide access to newly filed complaints contemporaneously with the Clerk's receipt of those complaints.

On appeal, the Seventh Circuit Court of Appeals reversed the injunction granted by the district court. Although the Seventh Circuit did acknowledge that the First Amendment protects the right to access,  the Court determined that federal courts should not be deciding whether state courts have violated a right of access. In sum, the Court held that the district court should not have exercised jurisdiction over this dispute, and the case should be heard in state court.  

Tuesday, November 13, 2018

Quorum Forum Episode 13.5 (Part 2 of Our Transgender People Episode) is Now Live!

Part 2 of our Quorum Forum Podcast Episode on Transgender People is now live.  Information about the podcast is below:

In part two of their discussion at the 40th Illinois Public Employer Labor Relations Association Annual Conference, transgender panelist Sophie Michaels, Palatine Park District’s Michael Clark, and Ancel Glink’s Keri-Lyn Krafthefer talk about best practices in policy development for all-inclusive public facilities, staff training, and options available to make facilities accommodating to transgender individuals. Specifically, Mike talks about his experience making public facilities accessible to transgender individuals. 

You can access this episode here.

Friday, November 9, 2018

Appellate Court Says Illegal Use Becomes Legal Upon Annexation

In a break from long-established precedent, the First District Appellate Court recently created a new category of legal nonconforming uses in situations involving the annexation of illegal uses. 

In Giannakopoulos v. Adams, No.11 CH 17516 (Oct. 29, 2018), a municipality annexed property containing an excavation business that included the storing and servicing of commercial vehicles and equipment. No annexation agreement was entered into between the parties and the municipality did not rezone the property or grant zoning relief when it annexed the property to the municipality. The use was illegal at its inception in 1954 under the Cook County Zoning Code and remained an illegal use thereafter, first under county zoning and, upon annexation, under the municipality’s residential zoning designation.
In 2011, after being unsuccessful in getting the municipality to enforce its zoning regulations, a next door neighbor brought suit against the excavation business under the Adjoining Landowner Act, 65 ILCS 5/11-13-15, seeking to enjoin the operation of the illegal use.  The trial court ruled in favor of the plaintiff, holding that the municipality had no authority as a non-home rule unit of government to legalize the defendants’ use of their property unless it first complied with one of the three procedures set forth in the zoning statutes (map amendment, variance, or annexation agreement).  

On appeal, the First District disagreed, holding that because the illegal use was “established” prior to annexation, it automatically became a legal nonconforming use “as-is” when the municipality annexed the property.  In other words, the appellate court found that annexation, in and of itself, can convert an illegal use into a legal use without the annexing authority needing to comply with state zoning laws.

A petition for leave to file an appeal with the Illinois Supreme Court has since been filed.

Post Authored by David Warner, Ancel Glink

Disclosure:  Ancel Glink attorneys represented the plaintiff before both the trial court and appellate court.

Thursday, November 8, 2018

Age Discrimination Law Applies to State and Local Governments Regardless of Number of Employees

The U.S. Supreme Court weighed in on the application of the federal Age Discrimination in Employment Act (ADEA) to small state and local government employers in the recent decision Mt. Lemmon Fire District v. Guido.

The Court ruled 8-0 that the ADEA applies to state and local governments regardless of the number of employees employed by the unit of government. The ADEA defines “employer” as a “person engaged in an industry affecting commerce who has 20 or more employees” or “(1) any agent of such a person, and (2) a State or political subdivision of a State.” Some government agencies had interpreted the definition to mean that the law only applied to government employers with 20 or more employees. In an opinion written by Justice Ginsburg, the U.S. Supreme Court disagreed, holding that the definition of “employer” separated private employers with 20 or more employees from state and local government employers with any number of employees.

The lawsuit involved a challenge against the District when it laid off two employees who claimed they were terminated because of their age in violation of the ADEA. The District argued that the ADEA did not apply because the District employs fewer than 20 people. The Ninth Circuit disagreed, and the case was appealed to the U.S. Supreme Court which upheld the Ninth Circuit’s ruling in favor of the two employees.

This is a significant ruling for small units of government that may have taken the position that they were not subject to the ADEA because they employed less than 20 people. 

Tuesday, November 6, 2018

Service Requirements of Election Code Must Be Strictly Followed

Doesn't it seems appropriate to report on an election case on Election Day? Quinn v. Board of Election Commissioners for the City of Chicago Electoral Board, 2018 IL App (1st) 182087

A group of citizens filed petitions for two binding referendum questions that would have been placed on today's ballot in Chicago. The ballot questions would have asked voters whether the office of Chicago mayor should be subject to a term limit of two terms and whether Chicago should establish an elected position for a "Consumer Advocate for taxpayer and consumers." Objections were filed challenging the two referenda, and a hearing officer for the Board of Election Commissioners for the Chicago Electoral Board held a hearing on the objections. At the conclusion of the hearing, and based on the hearing officer's recommendations, the Electoral Board issued a ruling that the two referenda not be on the ballot.

Former Governor Pat Quinn and others filed a lawsuit to appeal the Electoral Board's ruling. The objectors filed a motion to dismiss, claiming the court did not have jurisdiction over the lawsuit because the appellants failed to comply with the service requirements that require service on all parties within 5 days. Although the lawsuit was served on the Electoral Board, the Board of Elections, and the attorney for the objectors on September 17th, the objectors were not personally served  until September 19th. The trial court granted the motion to dismiss based on the failure to comply with the service requirements.

The appellate court agreed with the trial court, holding that the service requirements in section 10-10.1 of the Election Code must be strictly followed, and a court has no jurisdiction to review an electoral board's decision if service is faulty. In this case, the objectors were not personally served within the statutory time period, so the circuit court had no jurisdiction to hear the appeal of the electoral board's ruling. 

The appellate court did, however, reverse the circuit court's dismissal of the plaintiffs' mandamus claim in its lawsuit, and remanded that portion of the complaint back to the circuit court. 

Monday, November 5, 2018

Supreme Court Orders Supplemental Oral Argument and Briefing in Knick v. Township of Scott Case

We have reported previously on the 5th Amendment takings case Knick v. Township of Scott that is pending before the U.S. Supreme Court. The Supreme Court held oral arguments in this case on October 3rd. Just last week, the Supreme Court scheduled a second oral argument in this case (note that the previous argument took place prior to Justice Kavanaugh joining the Court). Some commentators speculate that the Justices were deadlocked, although the order itself requests that the parties submit briefing on one narrow issue, as follows:
This case is restored to the calendar for reargument. The parties and the Solicitor General are directed to file letter briefs, not to exceed 10 pages, addressing petitioner's alternative argument for vacatur, discussed at pages 12-15 and 40-42 of the transcript of oral argument and in footnote 14 of petitioner's brief on the merits. The briefs are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, November 30, 2018. Reply briefs, not to exceed 4 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 21, 2018.
The first round of supplemental briefs are due later this month, and argument will take place sometime in 2019.  

Friday, November 2, 2018

Talking About the Supreme Court's Janus Decision on GovLove's Podcast

For all of you podcast junkies, don't miss Ancel Glink attorney Matt DiCianni's discussion of the U.S. Supreme Court's opinion in Janus v. AFSCME (ruling that mandating payment of union "fair share" fees violates the First Amendment) on ELGL's GovLove podcast titled "Local Government Law, Unions, and the Janus Decision." You can listen here.

Thursday, November 1, 2018

Quorum Forum Podcast Released: Transgender People and Public Facilities

Ancel Glink just released Episode 13 of its popular podcast, Quorum Forum. This episode, titled "Transgender People and Public Facilities," is part one of a two part series that was recorded live at the 40th Illinois Public Employer Labor Relations Association Annual Conference (IPELRA). In part one, the panel discusses appropriate terminology and definitions to use with transgender individuals. We also hear from our transgender panelist on the challenges she has faced in accessing public facilities. You can access this episode on the Quorum Forum website here.

How do your public facilities accommodate transgender individuals? Tell us about it at podcast@ancelglink.com!

Wednesday, October 31, 2018

Discussion of Elected Officials in Closed Session Violated OMA

In its 15th binding opinion for 2018, the PAC found a public body in violation of the Open Meetings Act when it discussed the performance and salaries of two elected officials in closed session. PAC Op. 18-015

The county auditor filed a complaint with the PAC alleging that the finance committee of a county board improperly went into closed session to discuss the salaries of two elected officials. Her complaint raised allegations about three separate meetings. The PAC found that her allegations with respect to a May 2, 2018 meeting were outside its jurisdiction because the complaint was not filed within 60 days of that meeting. Allegations relating to a meeting scheduled for August 1, 2018, were also outside of the PAC's jurisdiction because that meeting had not yet taken place when the complaint was filed. The PAC did, however, review the allegations relating to a June 6, 2018 meeting of the finance committee.

The PAC reviewed the minutes of the June 6th meeting as well as the verbatim recording of the closed session. According to the opinion, the committee had cited 2(c)(1) of the OMA as the basis for going into closed session. That exception authorizes the discussion of, among other things, the performance and salaries of specific employees of a public body. The PAC found that the cited exemption did not apply in this case because the committee discussed the duties and salaries for two elected officials, the county coroner and the county auditor, and not employees. 

The OMA defines "employee" as "a person employed by a public body whose relationship with the public body constitutes an employer-employee relationship under the usual common law rules, and who is not an independent contractor." The PAC first determined that the county does not have an employer-employee relationship with the county auditor or county coroner because neither the committee nor the county board has the authority to direct and control the manner in which the auditor and coroner perform their duties. Second, the PAC determined that a public officer such as the county auditor or coroner cannot simultaneously be an "employee" of the county. Third, the PAC determined that state statute determines the duties and responsibilities of these elected officials, which statute prevails over any county ordinance. Finally, the PAC stated that the board has no authority to terminate the county auditor or coroner based on performance which would generally be the case were the two employees of the county. As a result, the PAC found that the cited exception 2(c)(1) did not apply.

The PAC also reviewed the exception contained in 2(c)(3) which allows a closed session discussion of public officers. The PAC noted that this exception only applies if the public body has the authority to remove the public officers being discussed, which is not the case with these two elected officials. So, the PAC determined that this exception also did not apply.

In sum, the PAC determined that the county board committee violated the OMA in discussing the performance and salaries of the county auditor and county coroner in closed session.

Tuesday, October 30, 2018

Court Addresses Fees for Zoning Violations

The Second District Appellate Court recently considered the fines that a municipality may impose for violations of a zoning ordinance in the case of City of Kankakee v. Ellington-Snipes. 

The controversy began on April 20, 2016, when the city issued a notice of violation to the property owner for various code violations relating to property maintenance issues. After the property owner failed to remedy the code violations, the city issued a citation.  However, the city subsequently dismissed the citation without prejudice.

Approximately 10 months later, on July 20, 2017, the city served the property owner with a lawsuit alleging that a tent that had been erected on the property violated the city’s zoning ordinance.  The city asked the court for an injunction and for payment of fines not exceeding $500 per day.  The property owner failed to answer the lawsuit or otherwise appear in court, and the city obtained a default judgment. The court issued an injunction requiring the property owner to bring the property into compliance with the zoning ordinance, and assessed fines against the property owner at $500 per day beginning on April 20, 2016, the date the city issued the notice of violation for the property maintenance issues. After the judgment had been entered, the property owner filed a motion to vacate the judgment, which was denied by the trial court.

On appeal, the property owner argued that the trial court should have set aside the injunction when he filed his motion to vacate.  The appellate court, however, found that the property owner had ample time to file an answer or appearance in response to the city’s lawsuit, and that the property owner had provided no reasonable excuse for the failure to timely respond. As a result, the appellate court upheld the injunction requiring compliance with the city’s zoning ordinance.

However, the appellate court reduced the amount of fines assessed against the property owner by the trial court. The appellate court noted that the city’s lawsuit only referenced the tent that violated the zoning ordinance, and did not include any of the property maintenance violations that the property owner was previously cited for.  Based on that distinction, the appellate court found that the fines had been improperly calculated beginning from the April 20, 2016 notice of violation. Instead, the appellate court reduced the fines to $500 per day beginning on July 20, 2017, the date that the property owner was served with the lawsuit for the zoning ordinance violation reducing the $49,500 fine imposed by the trial court to $20,500.

Post Authored by Kurt Asprooth, Ancel Glink

Monday, October 29, 2018

Nursing Home Had No Standing to Challenge Proposed Development of New Senior Residential Facility

Recently, an Illinois appellate court dismissed a case filed by one senior citizen facility operating in the municipality challenging the municipality's authority to approve a new senior citizen facility. Cedarhurst of Bethalto v. Village of Bethalto, 2018 IL App (5th) 170309.

Cedarhust operates a residential nursing home in the Village of Bethalto. When Unique Homes filed an application with the Village to build a new senior citizen residential facility, Cedarhust sued the Village claiming that it did not have authority to approve Unique Home's facility because the Village's comprehensive plan restricted development near the airport. The case was dismissed by the trial court, and Cedarhurst appealed.

On appeal, Cedarhurst argued that the Village was prohibited from approving or taking any action on Unique Homes' development applications because of the Village's comprehensive plan. The Village argued that the case had been properly dismissed because Cedarhust did not allege any special injury or individualized harm that Cedarhust would suffer if the Village approved the new development. The Village also argued that the comprehensive plan was advisory only, and the Village was under no obligation to implement any part of the plan in considering a development proposal. 

The appellate court agreed with the Village, and rejected Cedarhurst's claims. First, the court determined that Cedarhurst had no standing to challenge the Unique Home development proposal because it did not show how it would be directly injured by the development approval. Cedarhurst's nursing home was not near the proposed development, and Cedarhurst would suffer no direct, personal injuries if the Unique Homes' development were approved. Second, the court rejected Cedarhust's request for a court order to mandate that the Village follow its comprehensive plan, finding that the comprehensive plan is advisory only, and under state law"shall not be construed to regulate or control the use of private property in any way." In short, because Cedarhust did not have standing to sue the Village or Unique Homes, the case was properly dismissed.

Friday, October 26, 2018

PAC Finds Another Public Body in Violation for Failure to Respond to FOIA Request

In its 14th binding opinion of 2018, the PAC found a public body in violation of FOIA for failing to respond to a FOIA request. PAC Op. 18-014.  A requester had filed a FOIA request with the county assessor's office requesting records relating to tax exemptions for a particular property. When the requester did not receive a response, he filed a request for review with the PAC office of the Attorney General. The Attorney General contacted the county, which stated it would provide a response. However, when no response was forthcoming, the PAC found the public body in violation of FOIA.

As we have reported before, public bodies are obligated to respond to FOIA requests.

Thursday, October 25, 2018

Court Rejects Constitutional Challenge to City's Weed Ordinance

The City of Chicago sells vacant lots that it deems of "minimal value" to residents for $1 per lot. One of those lots was sold to Tucker, who intended to turn it into a community garden. Some time after she purchased the lot, the City inspected her property under the City's weed ordinance which prohibits the average height of weeds to exceed 10 inches in height. Six months later, the City served her with a citation for the condition that it found on the property six months prior. She appeared at an administrative hearing to contest the citation, claiming that the City failed to present evidence of the "average height" of the weeds. The administrative judge rejected that argument, and imposed a fine of $640.

Subsequently, Tucker filed a class action claim against the City claiming that the City's weed ordinance violated her civil rights because it did not provide a "post deprivation" hearing or other rights and because the City's delay in citing her violated her due process rights.

The Seventh Circuit Court of Appeals rejected Tucker's arguments, and upheld the City's weed ordinance. First, the Court noted that Tucker was provided with a hearing before the administrative judge where she could contest the citation. Second, the Court held that there is no due process right to an immediate "notice-on-demand" of an ordinance violation. Finally, the Court rejected Tucker's argument that the City misinterpreted its own ordinance, finding no due process right violation when a City disagrees with an individual's legal interpretation of a City ordinance. In sum, the City rejected Tucker's constitutional challenges to the City's process and weed ordinance, holding that the proper process to challenge a municipal citation is through the state courts. Tucker v. City of Chicago (7th Cir. 10/19/2018)

Wednesday, October 24, 2018

County Not Liable for Sexual Assault Committed by Park Employee

After a county employee assaulted a woman volunteer, the victim sued the county arguing that the county was liable for the acts of its employee.  In Doe v. Vigo County, the Seventh Circuit Court of Appeals determined that the county could not be held liable because (1) the employee’s job did not require close contact with vulnerable members of the public and (2) there was no evidence the county pursued a policy or custom of tolerating this type of behavior.

The employee worked for the county parks department where he oversaw volunteers including those completing community service.  The victim alleged the employee brought her to a restroom, locked the door, and sexually assaulted her.  The employee was arrested and eventually convicted of criminal confinement and official misconduct. 

In finding for the county, the Court held that in cases of sexual misconduct, Indiana law does not hold an employer vicariously liable for an employee’s misconduct unless the employee’s job requires intimate physical contact with individuals.  The court distinguished the park employee’s general maintenance and oversight responsibilities with public positions requiring close contact, such as an equipment manager outfitting youth baseball players or a caseworker required to bathe and dress disabled youth.  Similarly, the Court rejected the victim’s contention that the county made it a practice to ignore sexual misconduct allegations.  Instead, the county was able to rebut several misconduct cases offered by the victim by showing it had either fired, or allowed to resign, at least three of the individuals involved.  
While the outcome favored the county in this case, Illinois municipalities should be cautioned that Illinois law may not apply the same standards for vicarious liability.  For example, one Illinois appellate court found a school district vicariously liable when its bus driver sexually assaulted a student, without regard to whether the bus driver’s duties involved close contact with students of the kind required by Indiana.  

Post Authored by David Warner, Ancel Glink

Tuesday, October 23, 2018

FOIA Case Dismissed as "Moot" & Sanctions Awarded to Public Body

In Garlick v. Bloomgindale Township, Garlick filed a FOIA request with the Bloomingdale Township, asking for the native format of an electronic copy of all publicly disclosable data within the Township’s  property assessment software system. The Township initially responded that the requested information could be accessed on its website. Garlick responded that he could only review the information one parcel at a time on the website, which was too laborious and asked the Township to reconsider.  The Township responded that responding to the request would constitute an undue burden.  

Garlick then sued the Township arguing that it failed to respond to his request and that he did not have reasonable access to the website to retrieve the data. The Township argued that copyright and proprietary claims prohibited release of the data in its native format but that the data could be provided in an Excel format, which the Township provided to Garlick. Garlick then asked the Township to provide the record in an “SQL Server database,” which the Township did. The Township then filed a motion to dismiss since the requested data had been provided to Garlick, which was granted by the court.

Subsequent to that case, Garlick sent a new FOIA request to the Township, seeking all publicly disclosable data within the Township’s CAMA property-assessment software system.  He asked for the data in its native file format, which he believed was an SQL server database. The Township responded by providing the data in a SQL Server format.  The plaintiff then responded that  the data was not received in the format it is maintained, and requested the data as it exists in the Township’s SQL Server database.  Garlick sued again, asking the court to order release of the data in his requested format and that the court impose civil penalties, fees, and costs on the Township.  

Two days later, the Township responded to plaintiff’s FOIA request, stating that although the data was exempt from disclosure because it is JRM’s proprietary, trade-secret, and copyright protected information, the Township provided the data to plaintiff as JRM had authorized release of the data to plaintiff.  The Township then filed a motion to dismiss the complaint, arguing that the issue was moot since Garlick now had the data. The Township also sought an award of sanctions against Garlick for filing of a frivolous complaint.  The court agreed with the Township and dismissed the case finding that the complaint was moot and barred by collateral estoppel.  The court also agreed that the case was frivolous and awarded the Township sanctions over $31,000.  

This case and the high amount of sanctions awarded show the dangers of frivolous FOIA lawsuits and potential relief to public bodies.

Post Authored by Erin Pell, Ancel Glink

Monday, October 22, 2018

New Podcast Episode on Zoning Hearings

Episode 12 of Ancel Glink's podcast "Quorum Forum" has just been released. In this episode, Quorum Forum airs live from the recent 2018 American Planning Association – Illinois Chapter State Conference! Ancel Glink’s David Silverman joins us to discuss endearing (enduring?) public hearings, and lessons learned to effectively process requests for zoning relief. You can access our podcast website here.

Have you ever been part of a crazy public hearing? Tell us about it, podcast@ancelglink.com! Also, please email us with your ideas or requests for future podcast episodes. 

Friday, October 19, 2018

Upcoming APA Webcast on Planning, Law & Plain English

The Planning & Law Division of the American Planning Association will be hosting an upcoming webcast on planning law and plain English. One of the speakers is Ancel Glink partner David Silverman. You won't want to miss this!

Details about the webcast and a link to register is below.

Webcast— Planning, Law, and Plain English

November 1, 2018
1:00 – 2:30 PM EDT

CM | 1.50 | Law
CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning, Law, and Plain English on Thursday, November 1, 2018 from 1:00 to 2:30 p.m. EDT. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

This webinar will examine how words frame our understanding of often complex concepts and demonstrate how our choice of words can either illuminate the concept, or make it impossibly difficult to comprehend. The speakers will use real world examples of how English serves or compromises important planning and development policies and regulations and provide useful drafting tips that can make even the most verbose writer elegantly efficient.  Speakers are David Silverman, AICP, Partner at Ancel Glink in Chicago and Kimberley Mickelson, AICP, Sr. Asst City Attorney for Planning and Development, City of Houston Legal Department, Real Estate Division.

Thursday, October 18, 2018

PAC Rules Public Body Improperly Denied FOIA Request as Unduly Burdensome

In the 13th binding PAC opinion of the year, the PAC found that the Governor’s office improperly denied a request for records as unduly burdensome.  PAC Op. 18-013.  The requester, One Illinois, submitted a FOIA request to the Governor’s office seeking documents and emails sent or received by seven current and former employees and officials pertaining to certain appointments. The Governor’s office responded that the request was unduly burdensome and offered the requester the opportunity to narrow the request under Section 3(g) of FOIA.  The requester then narrowed his request to seek only emails and not related documents.  The Governor’s office again denied the narrowed request as unduly burdensome.  The requester then filed a complaint with the PAC.     

In defense of its denial, the Governor’s office claimed that its initial search for emails yielded 44,356 potential responsive emails.  However, that initial search was not limited to the subject of appointments.  The PAC found that the Governor’s office failed to demonstrate that the initial search was a reasonably adequate search for responsive emails, noting that a subsequent search that included the word “appoint” yielded only 1,783 potentially responsive emails.  The PAC found that the Governor’s office did not show that review of 1,783 emails would be unduly burdensome.  Further, the PAC noted that the Governor’s office did not show that the burden of reviewing and responding to this FOIA request would outweigh the public interest in the information sought.  The PAC ordered the Governor’s office to provide the requester with the e-mails in response to the request.

This opinion shows that when responding to a claim as unduly burdensome, the public body must demonstrate that it conducted an adequate search, with tailored search terms, and show why the burden outweighs the public interest in the information. 

Post Authored by Erin Pell, Ancel Glink

Wednesday, October 17, 2018

Requiring Protesters to Leave LGBTQ Festival Area Violated Free Speech Rights

The Sixth Circuit Court of Appeals recently issued an opinion finding Nashville's requirement that anti-gay protesters move from the sidewalk in the LGBTQ festival area and across the street violated the protesters' free speech rights. McGlone v. Metropolitan Government of Nashville, et al.

The Nashville Pride Festival was held in June of 2015, pursuant to a special events permit issued by Nashville. A group of protesters also showed up to the event with the purpose of protesting the Festival. However, police told them they could not remain on the sidewalk area immediately adjacent to the Festival and would have to move across the street.  Attendees of the Festival were not asked to leave, however. After the Festival was over, the protesters filed suit claiming that the police actions violated their free speech rights under the First Amendment.

The issue for the court was whether Nashville's exclusion of the protesters from the sidewalk area in the park was unconstitutional. The court concluded that the police actions were unconstitutional because there was no evidence that the protesters would interfere with the Festival, leading the court to conclude that the only reason they were moved was because their message conflicted with the Festival's message. Since Nashville couldn't show a compelling government interest for making them move to the other side of the street, the protesters' free speech rights were violated.

Monday, October 15, 2018

Lawsuit Against Transit District Relating to Bus Accident Time-Barred by Tort Immunity Act

Kelley was injured in a multi-vehicle accident that involved a bus operated by a unit of local government (Rides Mass Transit District). She subsequently sued to recover damages, and RMTD filed a motion to have the case dismissed, arguing that Kelley did not file her claim within the one year statute of limitations under the Tort Immunity Act. Kelley, on the other hand, argued that the one year statute of limitations did not apply because of the "common carrier" exception to that statutory time limit for filing a lawsuit against a unit of government. 

The case made its way to the appellate court, which ruled in favor of RMTD. Specifically, the court held that the "common carrier" exception to the one year time limit to file a lawsuit did not apply in this case. Although RMTD was a common carrier, it was not a common carrier to Kelley, because she was not a passenger of the bus when the accident occurred. As a result, the court determined that Kelley's lawsuit was not timely filed, and should be dismissed.  Kelley v. Bonham, 2018 IL App (5th) 170103-U

Tuesday, October 9, 2018

PAC Issues 12th Binding Opinion on "Personnel" Exception to OMA

The Illinois Attorney General's PAC office recently issued its 12th binding opinion for 2018, finding a public body in violation of the Open Meetings Act for improperly discussing its budget, layoffs, and related matters in closed session during a board meeting. PAC Op. 18-012.

A union president filed a complaint with the PAC office alleging that the Board of Trustees of Western Illinois University violated the OMA when it went into closed session to discuss reducing the salaries of all librarians and laying off other employees. The union argued that the discussion of classes of employees rather than specific employees was not within the scope of the OMA exceptions. The University Board responded that the Board did, in fact, discuss specific employees during closed session, and that discussion falls within the scope of section 2(c)(1) of the OMA that authorizes the discussion of compensation, performance, hiring, and dismissal of specific employees. 

The PAC disagreed with the University, finding that although the Board of Trustees did discuss one specific employee during closed session, the majority of the discussion concerned budgetary matters and considerations applicable to categories of employees, which the PAC said was outside the scope of 2(c)(1). The PAC also stated that the discussion of an elimination of a job or position for budgetary reasons unrelated to the performance of the employee does not fall within the scope of 2(c)(1). The PAC concluded that the Board of Trustees' closed session discussion exceeded the scope of the OMA's exceptions, and violated the OMA. The PAC ordered the public body to release a copy of the closed session minutes and verbatim recording, except for that portion that discussed a specific employee.

Although the PAC's opinion regarding budgetary discussions being outside the scope of the OMA's exception is not new (the PAC has issued previous opinions on this issue), the broad statement that a public body cannot discuss the dismissal of a specific employee unless the reason is performance-based seems inconsistent with the unambiguous language of 2(c)(1), which states as follows:
(1) The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity. However, a meeting to consider an increase in compensation to a specific employee of a public body that is subject to the Local Government Wage Increase Transparency Act may not be closed and shall be open to the public and posted and held in accordance with this Act.
The language clearly allows discussion of the dismissal of specific employees without any qualification that the dismissal be performance-related - the statute uses the word "or" between "performance" and "dismissal" and does not contain language that a discussion of the dismissal of an employee be for "performance-related" reasons. This opinion seems to narrow the scope of 2(c)(1) beyond the clear language of that exception.

Friday, October 5, 2018

Quorum Forum Podcast Airs Live From the IML Conference

Episode 10 of our Quorum Forum Podcast is now available. In this episode, we broadcast live from the recent Illinois Municipal League (IML) conference in Chicago and we feature guest speakers from a number of Illinois municipalities and provide highlights from some of the sessions presented by Ancel Glink attorneys. 

You can listen here.

Thursday, October 4, 2018

Homeowners May Not Enforce Terms of Annexation Agreement

A recent Illinois appellate court decision examined who is a “successor in interest” under an annexation agreement and state law.  The result is informative for municipalities and developers seeking to better understand what rights and obligations flow to successors in interest of all or a portion of the property subject to such agreements.  

In 1990, a developer entered into an annexation agreement with a village to develop a subdivision over approximately 828 acres.  The agreement included a requirement that the developer design and construct a storm drain system for the subdivision.  In 2004, Patricia and Brian Doyle contracted with the developer to build a home in the subdivision and approximately three years later the Doyles began to notice their sump pump ejecting water every few seconds during times of rain or heavy snow.  Two years later, in March 2010, the Doyles noticed erosion around the storm drain next to their home causing them to file a drainage complaint with the village.  

After attempting several minor fixes, the village eventually corrected the problem in December 2011 but not before the failed system damaged the Doyles’ home.  The Doyles then brought suit including a claim of negligence against the developer for failing to install a properly working storm drain system.  The Doyles claimed the developer breached its duty under the annexation agreement to install a functioning sewer system and the Doyles had standing to recover because the annexation agreement was binding on “successor owners of record of the Subject Property.”  The trial court dismissed the Doyles’ claim and, on appeal, the First District Court of Appeal agreed. 

In Doyle v. Village of Tinley Park and Malone, the appellate court found that both the annexation agreement, and the Illinois Municipal Code provisions governing these agreements bind successor owners of land subject to an annexation agreement and that any party to such an agreement may bring a civil action to enforce its provisions. However, the Court added that these provisions did not apply to subsequent purchasers of each and every lot in a subdivision.  To do so, the Court explained, would result in absurd results such as a village being able to sue homeowners for a developers failure to construct a working sewer system. 

The court held that the phrases used in the annexation agreement (“successor owners of record of the Subject Property”) and in the statute (“successor owners of record of the land) were intended to only mean those successors who take title to the entire subject property.  If the agreement or statute intended otherwise, the Court wrote, it would have expressly stated that it applied to successor owners of the subject property “or any portion thereof.

The decision has practical implications for parties drafting annexation agreements who are seeking to clarify what provisions will remain enforceable by and against subsequent owners.  As the court pointed out, in order to make provisions of an annexation agreement specifically applicable to subsequent purchasers, the parties must expressly provide say so in the agreement rather than merely relying on generalized assignment and successor in interest provisions.       

Post Authored by David Warner, Ancel Glink         

Wednesday, October 3, 2018

Court Dismisses Challenge to Village's Zoning Approval for a Gun Shop

We reported previously about a lawsuit challenging the Village of Niles' approval of a special use permit to allow the operation of a gun store and indoor firing range in the Village. In an earlier decision, the appellate court reversed the trial court's dismissal of the lawsuit based on lack of "standing", and sent the case back to the trial court for further proceedings.

After the case was sent back to the trial court, the plaintiff filed an amended complaint alleging that the Village's grant of the special use permit was unconstitutional. The trial court again dismissed the case for lack of standing, and the plaintiff again appealed. Last week, the appellate court upheld the dismissal of the case in People for a Safer Society v. Village of Niles.

The plaintiff had argued that the ordinance the Village approved to grant a special use to allow the gun store and indoor firing range was "arbitrary and capricious" and violated the plaintiff's substantive due process rights. The lawsuit also argued that the approval would reduce the value of neighboring properties. In its motion to dismiss, the Village argued that plaintiffs lacked standing because they did not own or reside in property adjacent or adjoining the property. The Village also argued that the complaint did not show any evidence of a special harm to the plaintiffs different than what the general public might suffer.

The appellate court applied a three-part test to determine whether the plaintiff "People for a Safer Society" had association standing to challenge the zoning approval. Although the court determined that the plaintiff showed that the group's interests in suing were consistent with its purposes and that the claim did not require participation of individual members, it did not meet the third factor - that its members would have standing to sue in their own right. Since plaintiff could not show that any of its members had individual standing to sue, plaintiff did not have the standing required to challenge Niles' zoning approval. As a result, the dismissal of the case was appropriate.

Tuesday, October 2, 2018

Exclusive Remedy to Challenge Township Road Tax is Tax Objection Process

A citizen filed a lawsuit to challenge a road tax assessed by an Illinois township. The tax had been approved by residents at a special township meeting. The plaintiff claimed that the tax was illegal because it was imposed in violation of the state tax cap law (PTELL), and that the meeting at which it was approved was not properly noticed and township officials acted inappropriately. 

The circuit court dismissed the case, finding that plaintiff was required to file a tax objection complaint rather than pursue a class action lawsuit. Plaintiff appealed, and the appellate court also ruled against him, finding that the appropriate and exclusive remedy for plaintiff to challenge a tax is through the statutory tax-objection process. Since plaintiff did not avail himself of that procedure, the circuit court properly dismissed his case. Reno v. Newport Township, 2018 IL App (2d) 170967

Monday, October 1, 2018

Ill Supreme Court Upholds Hospital Charitable Tax Exemption

The Illinois Supreme Court recently issued an opinion relating to a hospital's eligibility for a charitable property tax exemption. Oswald v. Hamer, 2018 IL 122203

Oswald, a Cook County taxpayer, had filed a lawsuit alleging that Section 15-86 of the Property Tax Code (which authorizes charitable property tax exemptions) is facially unconstitutional. Oswald claimed that the Illinois Constitution authorizes the state legislature to exempt from taxation only properties that are exclusively used for charitable purposes, yet the statute mandated that hospitals receive a tax exemption even if they were not exclusively used for charitable purposes. 

The Court rejected Oswald's constitutional challenge, finding that Oswald did not meet the burden of showing that the statute was unconstitutional in all applications, and that each hospital would still have to establish that it met the statutory definition to obtain a tax exemption.

Friday, September 28, 2018

City Owes No Duty To Pedestrians Exiting Taxis

Unsurprisingly, in an unreported opinion, the Court has again refused to expand the duty owed by a municipality to pedestrians exiting vehicles, specifically taxis. Decker v. City of Chicago, 2018 IL App (1st) 171066- U

Decker claims he was injured when he exited a legally stopped taxi and stepped onto a crumbling and eroding curb and sued the City of Chicago. The City filed a motion to dismiss arguing that the curb where Decker fell was located outside of the sidewalk, so Decker was not an intended user of the curb. The Court agreed with the City, and dismissed the case and Decker appealed.

As background, Section 3-102 (a) of the Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”) imposes a duty on municipalities only where the person injured is an intended and permitted user of the property controlled by the municipality. The general rule in Illinois is that a municipality does not owe a duty to pedestrians who walks or crosses in a public roadway outside of a crosswalk. The reasoning is that streets are intended for cars and not for pedestrians. The Supreme Court has, however, recognized a very narrow exception which concerns only the permitted and intended use of the street immediately around a legally parked vehicle by its exiting and entering vehicle operators and passengers.  Decker argues that the taxi stopping to drop him off was essentially a legal stopped vehicle, meaning he fell within this narrow exception and the City was liable for his injuries. The Court disagreed.

The following factors are considered in determining whether a duty is owed by a municipality: (1) the foreseeability that the municipality’s conduct will result in injury; (2) likelihood of injury; (3) magnitude of guarding against it; and, (4) the consequences of placing that burden upon the defendant. The Court here ultimately concluded that while it was entirely possible that an injury like Decker’s would occur to people getting into or getting out of a taxi, the burden of requiring municipalities to maintain the areas surrounding a legally stopped taxi would be unduly expensive and burdensome. Plus, taxis can stop anywhere and by expanding the duty to any location a taxi decides to stop would swallow the intended user rule of Section 3-102(a) because it would allow taxi cab drivers to create a municipal duty of care where one does not exist every single time they drop off a passenger.

Decker v. City of Chicago is not the first, nor will it be the last case to try and convince the Court to expand the narrow rule involving the duty owed to a person exiting and/or entering a vehicle. Stay tuned…

Post Authored by Christy Michaelson, Ancel Glink